Editorial: When jurors overstep

The Sackville Tribune Post

Published: May 28 at 12:24 p.m.

Updated: May 29 at 6 a.m.

Criminal investigations are best left to actual investigators. — 123RF Stock Photo

First, it was the “CSI effect.” That’s the nickname lawyers gave to the idea that jury members in trials were convinced that all sorts of forensic tests — as seen on the television program “CSI: Crime Scene Investigation” — were not only critical to cases, but also nearly infallible.

Jury members expected cases to have broad forensic evidence, and felt prosecutors had fallen down on the job if a wide range of such evidence wasn’t presented.

Now, there’s something that could be called the “Google effect.”

As the Toronto Star reported last week, at least three Ontario trials have been affected by rogue jurors — one of whom went so far as to research the judge in the case and one defence lawyer, before building his own computer-designed crime scene map and giving it to other jurors.

Jury members are told to avoid reading media stories about the case they are hearing, and not to search for information outside of the court process.

But cases are popping up where jurors play investigator, tracking down information that’s improper and even inaccurate, and then sharing it with other jury members.

As the Toronto Star reported last week, at least three Ontario trials have been affected by rogue jurors — one of whom went so far as to research the judge in the case and one defence lawyer, before building his own computer-designed crime scene map and giving it to other jurors.

Two of the cases had mistrials declared, one of which was a manslaughter and assault case in Barrie that had already involved six weeks of court time.

In an Ottawa civil case, a juror searched the province’s Insurance Act regulations and told other jurors about a regulation that didn’t even apply to the case at hand. In that case, the Star reported, a lawyer for the plaintiff also asked for a mistrial, saying in court documents, “How can justice be done between the parties when Google is the judge and the jury?”

Why do jurors head out on the Google trail, when they are specifically told not to look for information on the internet?

Perhaps because we’re addicted to the electronic encyclopedias we carry — even though the material we gather from them might not be accurate or complete.

As Ontario’s Court of Appeal put it in 2015, “the growing availability of and apparently insatiable appetite for information poses a formidable challenge to the right to a fair trial in the 21st century. Traditional forms of media have expanded onto the worldwide web. New forms of media have emerged as the web makes everyone a publisher, and social media help disseminate publications, both traditional and untraditional. It has become increasingly difficult to control the dissemination of information, with jurors able to use not only computers and tablets but also smartphones and even watches to access online material, and to curb the appetite of jurors for it. And with little quality control over content. The sensational trumps the accurate; fevered imaginings, truth.”

It’s unfair — how can anyone address an issue that hasn’t even been presented in court?